With vaccinations for the coronavirus already being administered, two timely questions arise for local school boards: 

  • Can local boards of education mandate that school employees provide proof of vaccination against the COVID-19 virus?   
  • Is such a mandate, if legally permissible, subject to mandatory negotiations with the local unit representative? 

In preliminary legal research, the NJSBA believes that boards of education in New Jersey do not presently possess the authority to mandate vaccinations of school employees. Such authority would only exist where supported by specific legislation. 

It appears that such a mandate, if granted by the Legislature, would be not subject to collective negotiations. However, a board may be required to negotiate the impact of such a mandate on public employees, such as leave time and co-pays. Additionally, any such mandate would require specific exceptions for certain employees and for employees with religious objections to vaccinations. Moreover, accommodations would have to be provided to employees, who for medical or other reasons, are unable to be vaccinated. 

State Authority  The government can, and has, mandated vaccinations in the past and this authority is well established. The legal precedent for mandatory vaccinations was first established in 1905 by the U.S. Supreme Court decision, Jacobson v. MassachusettsIn that case, the state of Massachusetts, with an exception for children, adopted a law providing that:  

“[T]he board of health of a city or town if, in its opinion, it is necessary for the public health or safety shall require and enforce the vaccination and revaccination of all the inhabitants thereof and shall provide them with the means of free vaccination. Whoever, being over twenty-one years of age and not under guardianship, refuses or neglects to comply with such requirement shall forfeit five dollars.” 

Subsequently, the city of Cambridge adopted a regulation requiring that all the inhabitants of the city be vaccinated against smallpox. Jacobson refused to be vaccinated, was criminally charged, fined, and jailed until he paid the fine. Jacobson appealed the conviction, arguing that the statute requiring vaccinations violated the 14th Amendment of the United States Constitution. That amendment provides, “No State shall make or enforce any law abridging the privileges or immunities of citizens of the United States, nor deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” 

The Jacobson court decision determined that the state’s authority to enact the statute derived from its “police powers” and further “recognized the authority of a State to enact quarantine laws and ‘health laws of every description;’ indeed, all laws that relate to matters completely within its territory and which do not by their, necessary operation affect the people of other States.” The court also noted that according to “well-settled principles,” a state’s police power includes at least the power to adopt reasonable regulations to protect public health and safety. 

In Sadlock v. Board of Education, the New Jersey Supreme Court had an opportunity to consider the Jacobson decision and determined: 

“In Jacobson v. Massachusetts, 197 U.S. 11, the Compulsory Vaccination Act of Massachusetts was sustained, although it interfered with a man’s personal liberty. These cases are but illustrations of the extent to which the highest tribunal has gone in vindication of the principle that the individual must yield somewhat of his personal rights to society in return for the benefits of society which he enjoys.” So, too, with respect to the guarantee of religious liberty, the constitutional guarantee of religious freedom was not intended to prohibit legislation with respect to the general public welfare. 

The State Has Not Exercised Its Authority Concerning Vaccinations  Accordingly, the Supreme Court of New Jersey would appear to support mandated vaccinations, if exercised under the state’s police powers, in the protection of the public welfare. However, to date the state has not exercised its police powers with respect to school district employees. Instead, the state has limited the exercise of its powers to requiring examinations of present school employees and successful applicants for employment, N.J.S.A. 18A:16-2. Additionally, according to N.J.S.A. 26:4-6, any entity having control of a school, to prevent the spread of a communicable disease, may prohibit a teacher’s attendance and specify the time during which the teacher is required to remain away from school. 

Negotiability  The test for negotiability was established in In the Matter of Local 195. In this 1982 decision, the New Jersey Supreme Court established the following three-part test to determine when disputed labor matters are negotiable: 

  1. The matter must intimately and directly affect the work and welfare of public employees; 
  2. The matter must not be preempted by statute or regulation; and 
  3. The matter must not significantly interfere with the determination of governmental policy. 

The present question of whether a board of education can mandate vaccinations for its employees arguably does not directly affect the work and welfare of public employees. In Local 195, in assessing whether a collective negotiations agreement providing for negotiations over the employer’s decision to subcontract unit work was a negotiable item, the court found that prime examples of matters that intimately and directly affect the work and welfare of public employees are rates of pay and working hours. Applying this reasoning to the present question demonstrates that requiring a vaccination does not generally implicate the rates of pay or working hours of employees. However, it can be argued that working hours are affected where employees must take time off to comply with the vaccination mandate. One response to this argument would be to grant employees leave time to get vaccinated or to provide vaccinations in the schools where release time could be granted, thereby allowing employees to be vaccinated without the use of personal leave.

It should be noted, however, that placing a vaccination site on school grounds brings a host of other legal and practical concerns beyond the scope of this article.

New Jersey Does Not Require Vaccinations The issue of mandated vaccinations for public school employees must be preempted via state mandate or regulation to be nonnegotiable. Presently, New Jersey does not require such vaccinations. Accordingly, for this topic to be exempt from negotiations, the state would need to adopt preemptive legislation providing for mandatory vaccinations for such employees. As noted above in Jacobson, the state has the authority, but has not yet chosen to exercise that discretion. 

Finally, to assert that mandatory vaccinations are not subject to negotiations, any collective negotiations agreement covering the topic must not interfere with the determination of a governmental policy. Here it is clear that having to negotiate the terms of mandatory vaccinations would interfere with the  determination of public policy. 

To decide whether a negotiated agreement would significantly interfere with the determination of governmental policy, it is necessary to balance the interests of the public employees and the public employer. When the dominant concern is the government’s managerial prerogative to determine policy, a subject may not be included in collective negotiations even though it may intimately affect employees’ working conditions. 

This type of policy determination [subcontracting] does not necessarily concern solely fiscal considerations. It requires basic judgments about how the work or services should be provided to best satisfy the concerns and responsibilities of government. Deciding whether or not to contract out a given government service may implicate important tradeoffs. 

In the present matter, the decision to mandate vaccinations for public employees implicates more than just fiscal considerations. It involves a political determination on how best to provide governmental services, public education to New Jersey students, while reducing the risk of exposure to the COVID-19 virus. To allow such a decision to be subject to collective negotiations would significantly impair the ability of school districts to implement such a mandate. As such, the government’s concern is dominant and would allow for the mandatory vaccination of public school employees. 

Despite the above analysis that a vaccine requirement, supported by enabling legislation, is a non-negotiable item, it is likely that boards would be required to negotiate over the impact of such a mandate. For example, the procedural requirements of the vaccine, such as notice, length of time given employees to provide proof of vaccination, the process to apply for an exemption or accommodation and other such procedural matters would most likely be subject to negotiations. 

Boards May Lack Authority to Mandate COVID-19 Vaccinations  In conclusion, it would appear that at present, local boards of education lack the authority to mandate COVID-19 vaccinations of employees. Such a requirement would first need enabling legislation. However, with the support of such legislation, boards would be able to implement mandatory vaccine requirements without the need to negotiate that mandate with the local union representatives, but may be required to negotiate the impact of such a mandate. 

For more information about this matter, board members may wish to consult with their board attorney or the NJSBA Legal and Labor Relations Department at (609) 278-5254.